The Americans with Disabilities Act (ADA) Amendments Act of 2008 was
signed into law on September 25, 2008 and becomes effective January 1,
2009. Because this law makes several significant changes, including
changes to the definition of the term "disability," the EEOC will be
evaluating the impact of these changes on this document and other
publications. See the list of specific changes to the ADA made by the ADA Amendments Act.

Although the federal EEO laws do not prohibit discrimination against
caregivers per se, there are circumstances in which discrimination
against caregivers might constitute unlawful disparate treatment. The
purpose of this document is to assist investigators, employees, and
employers in assessing whether a particular employment decision
affecting a caregiver might unlawfully discriminate on the basis of
prohibited characteristics under Title VII of the Civil Rights Act of
1964 or the Americans with Disabilities Act of 1990. This document is
not intended to create a new protected category but rather to illustrate
circumstances in which stereotyping or other forms of disparate
treatment may violate Title VII or the prohibition under the ADA against
discrimination based on a worker’s association with an individual with a
disability. An employer may also have specific obligations towards
caregivers under other federal statutes, such as the Family and Medical
Leave Act, or under state or local laws.1

The prohibition against sex discrimination under Title VII has made
it easier for women to enter the labor force. Since Congress enacted
Title VII, the proportion of women who work outside the home has
significantly increased,2 and women now comprise nearly half of the U.S. labor force.3
The rise has been most dramatic for mothers of young children, who are
almost twice as likely to be employed today as were their counterparts
30 years ago.4 The total amount of time that couples with children spend working also has increased.5
Income from women’s employment is important to the economic security
of many families, particularly among lower-paid workers, and accounts
for over one-third of the income in families where both parents work.6 Despite these changes, women continue to be most families’ primary caregivers.7

Of course, workers’ caregiving responsibilities are not limited to
childcare, and include many other forms of caregiving. An increasing
proportion of caregiving goes to the elderly, and this trend will likely
continue as the Baby Boomer population ages.8
As with childcare, women are primarily responsible for caring for
society’s elderly, including care of parents, in-laws, and spouses.9
Unlike childcare, however, eldercare responsibilities generally
increase over time as the person cared for ages, and eldercare can be
much less predictable than childcare because of health crises that
typically arise.10 As eldercare becomes
more common, workers in the “sandwich generation,” those between the
ages of 30 and 60, are more likely to face work responsibilities
alongside both childcare and eldercare responsibilities.11

Caring for individuals with disabilities – including care of adult
children, spouses, or parents – is also a common responsibility of
workers.12 According to the most recent
U.S. census, nearly a third of families have at least one family member
with a disability, and about one in ten families with children under 18
years of age includes a child with a disability.13 Most men and women who provide care to relatives or other individuals with a disability are employed.14

While caregiving responsibilities disproportionately affect working
women generally, their effects may be even more pronounced among some
women of color, particularly African American women,15 who have a long history of working outside the home.16 African American mothers with young children are more likely to be employed than other women raising young children,17
and both African American and Hispanic women are more likely to be
raising children in a single-parent household than are White or Asian
American women.18 Women of color also may devote more time to caring for extended family members, including both grandchildren19 and elderly relatives,20 than do their White counterparts.

Although women are still responsible for a disproportionate share of
family caregiving, men’s role has increased. Between 1965 and 2003,
the amount of time that men spent on childcare nearly tripled, and men
spent more than twice as long performing household chores in 2003 as
they did in 1965.21 Working mothers are also increasingly relying on fathers as primary childcare providers.22

As more mothers have entered the labor force, families have
increasingly faced conflicts between work and family responsibilities,
sometimes resulting in a “maternal wall” that limits the employment
opportunities of workers with caregiving responsibilities.23 These conflicts are perhaps felt most profoundly by lower-paid workers,24 who are disproportionately people of color.25
Unable to afford to hire a childcare provider, many couples “tag team”
by working opposite shifts and taking turns caring for their children.
In comparison to professionals, lower-paid workers tend to have much
less control over their schedules and are more likely to face inflexible
employer policies, such as mandatory overtime.26
Family crises can sometimes lead to discipline or even discharge when a
worker violates an employer policy in order to address caregiving
responsibilities.27

The impact of work-family conflicts also extends to
professional workers, contributing to the maternal wall or “glass
ceiling” that prevents many women from advancing in their careers. As a
recent EEOC report reflects, even though women constitute about half of
the labor force, they are a much smaller proportion of managers and
officials.28 The disparity is greatest
at the highest levels in the business world, with women accounting for
only 1.4% of Fortune 500 CEOs.29 Thus,
one of the recommendations made by the federal Glass Ceiling Commission
in 1995 was for organizations to adopt policies that allow workers to
balance work and family responsibilities throughout their careers.30

Individuals with caregiving responsibilities also may encounter
the maternal wall through employer stereotyping. Writing for the
Supreme Court in 2003, Chief Justice Rehnquist noted that “the faultline
between work and family [is] precisely where sex-based
overgeneralization has been and remains strongest.”31
Sex-based stereotyping about caregiving responsibilities is not
limited to childcare and includes other forms of caregiving, such as
care of a sick parent or spouse.32 Thus,
women with caregiving responsibilities may be perceived as more
committed to caregiving than to their jobs and as less competent than
other workers, regardless of how their caregiving responsibilities
actually impact their work.33 Male
caregivers may face the mirror image stereotype: that men are poorly
suited to caregiving. As a result, men may be denied parental leave or
other benefits routinely afforded their female counterparts.34 Racial and ethnic stereotypes may further limit employment opportunities for people of color.35

Employment decisions based on such stereotypes violate the federal antidiscrimination statutes,36even when an employer acts upon such stereotypes unconsciously or reflexively.37
As the Supreme Court has explained, “[W]e are beyond the day when an
employer could evaluate employees by assuming or insisting that they
match the stereotype associated with their group.”38
Thus, for example, employment decisions based on stereotypes about
working mothers are unlawful because “the antidiscrimination laws
entitle individuals to be evaluated as individuals rather than as
members of groups having certain average characteristics.”39

Although some employment decisions that adversely affect caregivers
may not constitute unlawful discrimination based on sex or another
protected characteristic, the Commission strongly encourages employers
to adopt best practices to make it easier for all workers, whether male
or female, to balance work and personal responsibilities. There is
substantial evidence that workplace flexibility enhances employee
satisfaction and job performance.40 Thus, employers can benefit by adopting such flexible workplace polices41 by, for example, saving millions of dollars in retention costs.42

This section illustrates various circumstances under which
discrimination against a worker with caregiving responsibilities
constitutes unlawful disparate treatment under Title VII or the ADA.
Part A discusses sex-based disparate treatment of female caregivers,
focusing on sex-based stereotypes. Part B discusses stereotyping and
other disparate treatment of pregnant workers. Part C discusses
sex-based disparate treatment of male caregivers, such as the denial of
childcare leave that is available to female workers. Part D discusses
disparate treatment of women of color who have caregiving
responsibilities. Part E discusses disparate treatment of a worker with
caregiving responsibilities for an individual with a disability, such
as a child or a parent. Finally, part F discusses harassment resulting
in a hostile work environment for a worker with caregiving
responsibilities.

Intentional sex discrimination against workers with caregiving
responsibilities can be proven using any of the types of evidence used
in other sex discrimination cases. As with any other charge,
investigators faced with a charge alleging sex-based disparate treatment
of female caregivers should examine the totality of the evidence to
determine whether the particular challenged action was unlawfully
discriminatory. All evidence should be examined in context. The
presence or absence of any particular kind of evidence is not
dispositive. For example, while comparative evidence is often useful,
it is not necessary to establish a violation.43
There may be evidence of comments by officials about the reliability
of working mothers or evidence that, despite the absence of a decline in
work performance, women were subjected to less favorable treatment
after they had a baby. It is essential that there be evidence that the
adverse action taken against the caregiver was based on sex.

Relevant evidence in charges alleging disparate treatment of
female caregivers may include, but is not limited to, any of the
following:

Whether the respondent asked female applicants, but not male
applicants, whether they were married or had young children, or about
their childcare and other caregiving responsibilities;

Whether decisionmakers or other officials made stereotypical or
derogatory comments about pregnant workers or about working mothers or
other female caregivers;44

Whether the respondent began subjecting the charging party or other
women to less favorable treatment soon after it became aware that they
were pregnant;45

Whether, despite the absence of a decline in work performance, the
respondent began subjecting the charging party or other women to less
favorable treatment after they assumed caregiving responsibilities;

Whether female workers without children or other caregiving
responsibilities received more favorable treatment than female
caregivers based upon stereotypes of mothers or other female caregivers;

Whether the respondent steered or assigned women with caregiving responsibilities to less prestigious or lower-paid positions;

Whether male workers with caregiving responsibilities received more favorable treatment than female workers;46

Employment decisions that discriminate against workers with
caregiving responsibilities are prohibited by Title VII if they are
based on sex or another protected characteristic, regardless of whether
the employer discriminates more broadly against all members of the
protected class. For example, sex discrimination against working
mothers is prohibited by Title VII even if the employer does not
discriminate against childless women.49

Charmaine, a mother of two preschool-age children, files an EEOC
charge alleging sex discrimination after she is rejected for an opening
in her employer’s executive training program. The employer asserts that
it rejected Charmaine because candidates who were selected had better
performance appraisals or more managerial experience and because she is
not “executive material.” The employer also contends that the fact that
half of the selectees were women shows that her rejection could not
have been because of sex. However, the investigation reveals that
Charmaine had more managerial experience or better performance
appraisals than several selectees and was better qualified than some
selectees, including both men and women, as weighted pursuant to the
employer’s written selection policy. In addition, while the employer
selected both men and women for the program, the only selectees with
preschool age children were men. Under the circumstances, the
investigator determines that Charmaine was subjected to discrimination
based on her sex.

Title VII does not prohibit discrimination based solely on
parental or other caregiver status, so an employer does not generally
violate Title VII’s disparate treatment proscription if, for example, it
treats working mothers and working fathers in a similar unfavorable (or
favorable) manner as compared to childless workers.

Although women actually do assume the bulk of caretaking
responsibilities in most families and many women do curtail their work
responsibilities when they become caregivers, Title VII does not permit
employers to treat female workers less favorably merely on the
gender-based assumption that a particular female worker will assume
caretaking responsibilities or that a female worker’s caretaking
responsibilities will interfere with her work performance.50
Because stereotypes that female caregivers should not, will not, or
cannot be committed to their jobs are sex-based, employment decisions
based on such stereotypes violate Title VII.51

Relying on stereotypes of traditional gender roles and the division
of domestic and workplace responsibilities, some employers may assume
that childcare responsibilities will make female employees less
dependable than male employees, even if a female worker is not pregnant
and has not suggested that she will become pregnant.52
Fear of such stereotyping may even prompt married female job applicants
to remove their wedding rings before going into an interview.53

EXAMPLE 2
UNLAWFUL STEREOTYPING DURING HIRING PROCESS

Patricia, a recent business school graduate, was interviewed for a
position as a marketing assistant for a public relations firm. At the
interview, Bob, the manager of the department with the vacancy being
filled, noticed Patricia’s wedding ring and asked, “How many kids do you
have?” Patricia told Bob that she had no children yet but that she
planned to once she and her husband had gotten their careers underway.
Bob explained that the duties of a marketing assistant are very
demanding, and rather than discuss Patricia’s qualifications, he asked
how she would balance work and childcare responsibilities when the need
arose. Patricia explained that she would share childcare
responsibilities with her husband, but Bob responded that men are not
reliable caregivers. Bob later told his secretary that he was concerned
about hiring a young married woman – he thought she might have kids,
and he didn’t believe that being a mother was “compatible with a
fast-paced business environment.” A week after the interview, Patricia
was notified that she was not hired.

Believing that she was well qualified and that the interviewer’s
questions reflected gender bias, Patricia filed a sex discrimination
charge with the EEOC. The investigator discovered that the employer
reposted the position after rejecting Patricia. The employer said that
it reposted the position because it was not satisfied with the
experience level of the applicants in the first round. However, the
investigation showed that Patricia easily met the requirements for the
position and had as much experience as some other individuals recently
hired as marketing assistants. Under the circumstances, the
investigator determines that the respondent rejected Patricia from the
first round of hiring because of sex-based stereotypes in violation of
Title VII.

An employer violates Title VII if the charging party’s sex was a
motivating factor in the challenged employment decision, regardless of
whether the employer was also motivated by legitimate business reasons.54
However, when an employer shows that it would have taken the same
action even absent the discriminatory motive, the complaining employee
will not be entitled to reinstatement, back pay, or damages.55

EXAMPLE 3
DECISION MOTIVATED BY BOTH UNLAWFUL STEREOTYPING
AND LEGITIMATE BUSINESS REASON

Same facts as above except that the employer did not repost the
position but rather hired Tom from the same round of candidates that
Patricia was in. In addition, the record showed that other than Tom’s
greater experience, Tom and Patricia had similar qualifications but that
the employer consistently used relevant experience as a tiebreaking
factor in filling marketing positions. The investigator determines that
the employer has violated Title VII because sex was a motivating factor
in the employer’s decision not to hire Patricia as evidenced by Bob’s
focus on caregiving responsibilities, rather than qualifications, when
he interviewed Patricia and other female candidates. However, the
employer would have selected Tom, even absent the discriminatory motive,
based on his greater experience. Thus, Patricia may be entitled to
attorney’s fees and/or injunctive relief, but is not entitled to
instatement, back pay, or compensatory or punitive damages.

The effects of stereotypes may be compounded after female employees
become pregnant or actually begin assuming caregiving responsibilities.
For example, employers may make the stereotypical assumptions that
women with young children will (or should) not work long hours and that
new mothers are less committed to their jobs than they were before they
had children.56 Relying on such
stereotypes, some employers may deny female caregivers opportunities
based on assumptions about how they might balance work and family
responsibilities. Employers may further stereotype female caregivers
who adopt part-time or flexible work schedules as “homemakers” who are
less committed to the workplace than their full-time colleagues.57
Adverse employment decisions based on such sex-based assumptions or
speculation, rather than on the specific work performance of a
particular employee, violate Title VII.

Anjuli, a police detective, had received glowing performance reviews
during her first four years with the City’s police department and was
assumed to be on a fast track for promotion. However, after she
returned from leave to adopt a child during her fifth year with the
department, her supervisor frequently asked how Anjuli was going to
manage to stay on top of her case load while caring for an infant.
Although Anjuli continued to work the same hours and close as many cases
as she had before the adoption, her supervisor pointed out that none of
her superiors were mothers, and he removed her from her high-profile
cases, assigning her smaller, more routine cases normally handled by
inexperienced detectives. The City has violated Title VII by treating
Anjuli less favorably because of gender-based stereotypes about working
mothers.

EXAMPLE 5
UNLAWFUL STEREOTYPING BASED ON PARTICIPATION
IN FLEXIBLE WORK ARRANGEMENT

Emily, an assistant professor of mathematics at the University for
the past seven years, files a charge alleging that she was denied tenure
based on her sex. Emily applied for tenure after she returned from six
months of leave to care for her father. The University’s flexible work
program allowed employees to take leave for a year without penalty.
Before taking leave, Emily had always received excellent performance
reviews and had published three highly regarded books in her field.
After returning from leave, however, Emily believed she was held to a
higher standard of review than her colleagues who were not caregivers or
had not taken advantage of the leave policies, as reflected in the
lower performance evaluations that she received from the Dean of her
department after returning from leave. Emily applied for tenure, but
the promotion was denied by the Dean, who had a history of criticizing
female faculty members who took time off from their careers and was
heard commenting that “she’s just like the other women who think they
can come and go as they please to take care of their families.”

While the University acknowledges that Emily was eligible for tenure,
it asserts that it denied Emily tenure because of a decline in her
performance. The investigation reveals, however, that Emily’s
post-leave work output and classroom evaluations were comparable to her
work performance before taking leave. In addition, The University does
not identify any specific deficiencies in Emily’s performance that
warranted the decline in its evaluation of her work. Under the
circumstances, the investigator determines that Emily was denied tenure
because of her sex.

Employment decisions that are based on an employee’s actual work
performance, rather than assumptions or stereotypes, do not generally
violate Title VII, even if an employee’s unsatisfactory work performance
is attributable to caregiving responsibilities.

EXAMPLE 6
EMPLOYMENT DECISION LAWFULLY BASED ON
ACTUAL WORK PERFORMANCE

After Carla, an associate in a law firm, returned from maternity
leave, she began missing work frequently because of her difficulty in
obtaining childcare and was unable to meet several important deadlines.
As a result, the firm lost a big client, and Carla was given a written
warning about her performance. Carla’s continued childcare difficulties
resulted in her missing further deadlines for several important
projects. Two months after Carla was given the written warning, the
firm transferred her to another department, where she would be excluded
from most high-profile cases but would perform work that has fewer time
constraints. Carla filed a charge alleging sex discrimination. The
investigation revealed that Carla was treated comparably to other
employees, both male and female, who had missed deadlines on
high-profile projects or otherwise performed unsatisfactorily and had
failed to improve within a reasonable period of time. Therefore, the
employer did not violate Title VII by transferring Carla.

Adverse employment decisions based on gender stereotypes are
sometimes well-intentioned and perceived by the employer as being in the
employee’s best interest.58 For
example, an employer might assume that a working mother would not want
to relocate to another city, even if it would mean a promotion.59
Of course, adverse actions that are based on sex stereotyping violate
Title VII, even if the employer is not acting out of hostility.60

Rhonda, a CPA at a mid-size accounting firm, mentioned to her boss
that she had become the guardian of her niece and nephew and they were
coming to live with her, so she would need a few days off to help them
settle in. Rhonda’s boss expressed concern that Rhonda would be unable
to balance her new family responsibilities with her demanding career,
and was worried that Rhonda would suffer from stress and exhaustion.
Two weeks later, he moved her from her lead position on three of the
firm’s biggest accounts and assigned her to supporting roles handling
several smaller accounts. In doing so, the boss told Rhonda that he was
transferring her so that she “would have more time to spend with her
new family,” despite the fact that Rhonda had asked for no additional
leave and had been completing her work in a timely and satisfactory
manner. At the end of the year, Rhonda, for the first time in her
7-year stint at the firm, is denied a pay raise, even though many other
workers did receive raises. When she asks for an explanation, she is
told that she needs to be available to work on bigger accounts if she
wants to receive raises. Here, the employer has engaged in unlawful sex
discrimination by taking an adverse action against a female employee
based on stereotypical assumptions about women with caregiving
responsibilities, even if the employer believed that it was acting in
the employee’s best interest.

In some circumstances, an employer will take an action that
unlawfully imposes on a female worker the employer’s own stereotypical
views of how the worker should act even though the employer is
aware that the worker objects. Thus, if a supervisor believes that
mothers should not work full time, he or she might refuse to consider a
working mother for a promotion that would involve a substantial increase
in hours, even if that worker has made it clear that she would accept
the promotion if offered.

EXAMPLE 8
DENIAL OF PROMOTION BASED ON STEREOTYPE
OF HOW MOTHERS SHOULD ACT

Sun, a mid-level manager in a data services company, applied for a
promotion to a newly created upper-level management position. At the
interview for the promotion, the selecting official, Charlie, who had
never met Sun before, asked her about her childcare responsibilities.
Sun explained that she had two teenage children and that she commuted
every week between her home in New York and the employer’s main office
in Northern Virginia. Charlie asked Sun how her husband handled the
fact that she was “away from home so much, not caring for the family
except on weekends.” Sun explained that her husband and their children
“helped each other” to function as “a successful family,” but Charlie
responded that he had “a very difficult time understanding why any man
would allow his wife to live away from home during the work week.”
After Sun is denied the promotion, she files an EEOC charge alleging sex
discrimination. According to the employer, it considered Sun and one
other candidate for the promotion, and, although they were both well
qualified, it did not select Sun because it felt that it was unfair to
Sun’s children for their mother to work so far from home. Under the
circumstances, the investigator determines that the employer denied Sun
the promotion because of unlawful sex discrimination, basing its
decision in particular on stereotypes that women with children should
not live away from home during the week.61

In addition to leading to assumptions about how female employees
might balance work and caregiving responsibilities, gender stereotypes
of caregivers may more broadly affect perceptions of a worker’s general
competence.62 Once female workers have
children, they may be perceived by employers as being less capable and
skilled than their childless female counterparts or their male
counterparts, regardless of whether the male employees have children.63
These gender-based stereotypes may even place some working mothers in a
“double bind,” in which they are simultaneously viewed by their
employers as “bad mothers” for investing time and resources into their
careers and “bad workers” for devoting time and attention to their
families.64 The double bind may be
particularly acute for mothers or other female caregivers who work part
time. Colleagues may view part-time working mothers as uncommitted to
work while viewing full-time working mothers as inattentive mothers.65 Men who work part time may encounter different, though equally harmful, stereotypes.66

Investigators should be aware that it may be more difficult to
recognize sex stereotyping when it affects an employer’s evaluation of a
worker’s general competence than when it leads to assumptions about how
a worker will balance work and caregiving responsibilities. Such
stereotyping can be based on unconscious bias, particularly where
officials engage in subjective decisionmaking. As with other forms of
gender stereotyping, comparative evidence showing more favorable
treatment of male caregivers than female caregivers is helpful but not
necessary to establish a violation.67 Investigators should be particularly attentive, for example, to evidence of the following:

Changes in an employer’s assessment of a worker’s performance that
are not linked to changes in the worker’s actual performance and that
arise after the worker becomes pregnant or assumes caregiving
responsibilities;

Subjective assessments that are not supported by specific objective criteria; and

Changes in assignments or duties that are not readily explained by nondiscriminatory reasons.

EXAMPLE 9
EFFECTS OF STEREOTYPING ON EMPLOYER’S
PERCEPTION OF EMPLOYEE

Barbara, a highly successful marketing executive at a large public
relations firm, recently became the primary caregiver for her two young
grandchildren. Twice a month, Barbara and her marketing colleagues are
expected to attend a 9 a.m. corporate sales meeting. Last month,
Barbara arrived a few minutes late to the meeting. Barbara did not
think her tardiness was noteworthy since one of her colleagues, Jim,
regularly arrived late to the meetings. However, after her late
arrival, Barbara’s boss, Susan, severely criticized her for the incident
and informed her that she needed to start keeping a daily log of her
activities.

The next month, Susan announced that one of the firm’s marketing
executives would be promoted to the position of Vice President. After
Susan selected Jim, Barbara filed a charge alleging that she was denied
the promotion because of her sex. According to Susan, she selected Jim
because she believed that he was more “dependable, reliable, and
committed to his work” than other candidates. Susan explained to the
investigator that she thought as highly of Barbara’s work as she did of
Jim’s, but she decided not to promote a worker who arrived late to sales
meetings, even if it was because of childcare responsibilities. Other
employees stated that they could only remember Barbara’s being late on
one occasion, but that Jim had been late on numerous occasions. When
asked about this, Susan admitted that she might have forgotten about the
times when Jim was late, but still considered Jim to be much more
dependable. The investigator asks Susan for more specifics, but Susan
merely responds that her opinion was based on many years of experience
working with both Barbara and Jim. Under the circumstances, the
investigator concludes that Susan denied Barbara the promotion because
of her sex.

Simone, the mother of two elementary-school-age children, files an
EEOC charge alleging sex discrimination after she is terminated from her
position as a reporter with a medium-size newspaper. The employer
asserts that it laid Simone off as part of a reduction in force in
response to decreased revenue. The employer states that Simone’s
supervisor, Alex, compared Simone with two other reporters in the same
department to determine whom to lay off. According to Alex, he
considered Jocelyn (an older woman with two grown children) to be a
superior worker to Simone because Jocelyn’s work needed less editing and
supervision and she had the most experience of anyone in the
department. Alex said he also favored Louis (a young male worker with
no children) over Simone because Louis had shown exceptional initiative
and creativity by writing several stories that had received national
publicity and by creating a new feature to increase youth readership and
advertising revenue. Alex said that he considered Simone’s work
satisfactory, but that she lacked the unique talents that Jocelyn and
Louis brought to the department. Because the investigation does not
reveal that the reasons provided by Alex are a pretext for sex
discrimination, the investigator does not find that Simone was subjected
to sex discrimination.

Employers can also violate Title VII by making assumptions about
pregnancy, such as assumptions about the commitment of pregnant workers
or their ability to perform certain physical tasks.68
As the Supreme Court has noted, “[W]omen as capable of doing their jobs
as their male counterparts may not be forced to choose between having a
child and having a job.”69 Title VII’s
prohibition against sex discrimination includes a prohibition against
employment decisions based on pregnancy, even where an employer does not
discriminate against women generally.70
As with other sex-based stereotypes, Title VII prohibits an employer
from basing an adverse employment decision on stereotypical assumptions
about the effect of pregnancy on an employee’s job performance,
regardless of whether the employer is acting out of hostility or a
belief that it is acting in the employee’s best interest.

Because Title VII prohibits discrimination based on pregnancy,
employers should not make pregnancy-related inquiries. The EEOC will
generally regard a pregnancy-related inquiry as evidence of pregnancy
discrimination where the employer subsequently makes an unfavorable job
decision affecting a pregnant worker.71
Employers should be aware that pregnancy testing also implicates the
ADA, which restricts employers’ use of medical examinations. 72
Given the potential Title VII and ADA implications, the Commission
strongly discourages employers from making pregnancy-related inquiries
or conducting pregnancy tests.

An employer also may not treat a pregnant worker who is temporarily
unable to perform some of her job duties because of pregnancy less
favorably than workers whose job performance is similarly restricted
because of conditions other than pregnancy. For example, if an employer
provides up to eight weeks of paid leave for temporary medical
conditions, then the employer must provide up to eight weeks of paid
leave for pregnancy or related medical conditions.73

For more information on pregnancy discrimination under Title VII,
see “Questions and Answers on the Pregnancy Discrimination Act,” 29
C.F.R. Part 1604 Appendix (1978).

Anna, a records administrator for a health maintenance organization,
was five months pregnant when she missed two days of work due to a
pregnancy-related illness. Upon her return to work, Anna’s supervisor,
Tom, called her into his office and told her that “her body was trying
to tell her something” and that “her attendance was becoming a serious
problem.” Anna reminded him that she had only missed two days and that
her doctor had found no continuing complications related to her brief
illness. However, Tom responded, “Well, now that you’re pregnant, you
will probably miss a lot of work, and we need someone who will be
dependable.” Tom placed Anna on an unpaid leave of absence, telling her
that she would be able to return to work after she had delivered her
baby and had time to recuperate and that “not working [was] the best
thing for [her] right now.” In response to Anna’s EEOC charge alleging
pregnancy discrimination, the employer states that it placed Anna on
leave because of poor attendance. The investigation reveals, however,
that Anna had an excellent attendance record before she was placed on
leave. In the prior year, she had missed only three days of work
because of illness, including two days for her pregnancy-related illness
and one day when she was ill before she became pregnant. The
investigator concludes that the employer subjected Anna to impermissible
sex discrimination under Title VII by basing its action on a
stereotypical assumption that pregnant women are poor attendees and that
Anna would be unable to meet the requirements of the job.74

EXAMPLE 12
UNLAWFUL REFUSAL TO MODIFY DUTIES

Ingrid, a pregnant machine operator at a bottling company, is told by
her doctor to temporarily refrain from lifting more than 20 pounds. As
part of her job as a machine operator, Ingrid is required to carry
certain materials weighing more than 20 pounds to and from her machine
several times each day. She asks her supervisor if she can be
temporarily relieved of this function. The supervisor refuses, stating
that he can’t reassign her job duties but can transfer her temporarily
to another lower-paying position for the duration of the lifting
restriction. Ingrid reluctantly accepts the transfer but also files an
EEOC charge alleging sex discrimination. The investigation reveals that
in the previous six months, the employer had reassigned the lifting
duties of three other machine operators, including a man who injured his
arm in an automobile accident and a woman who had undergone surgery to
treat a hernia. Under the circumstances, the investigator determines
that the employer subjected Ingrid to discrimination based on sex (i.e.,
pregnancy).

The Supreme Court has observed that gender-based stereotypes also
influence how male workers are perceived: “Stereotypes about women’s
domestic roles are reinforced by parallel stereotypes presuming a lack
of domestic responsibilities for men. These mutually reinforcing
stereotypes created a self-fulfilling cycle of discrimination.”76
Stereotypes of men as “bread winners” can further lead to the
perception that a man who works part time is not a good father, even if
he does so to care for his children.77
Thus, while working women have generally borne the brunt of gender-based
stereotyping, unlawful assumptions about working fathers and other male
caregivers have sometimes led employers to deny male employees
opportunities that have been provided to working women or to subject men
who are primary caregivers to harassment or other disparate treatment.78
For example, some employers have denied male employees’ requests for
leave for childcare purposes even while granting female employees’
requests. For more information on how to determine whether an employee
has been subjected to unlawful disparate treatment, see the discussion
at § II.A.1, above, “Sex-based Disparate Treatment of Female Caregivers –
Analysis of Evidence.”

Significantly, while employers are permitted by Title VII to provide
women with leave specifically for the period that they are
incapacitated because of pregnancy, childbirth, and related medical
conditions, employers may not treat either sex more favorably with
respect to other kinds of leave, such as leave for childcare purposes.79
To avoid a potential Title VII violation, employers should carefully
distinguish between pregnancy-related leave and other forms of leave,
ensuring that any leave specifically provided to women alone is limited
to the period that women are incapacitated by pregnancy and childbirth.80

Eric, an elementary school teacher, requests unpaid leave for the
upcoming school year for the purpose of caring for his newborn son.
Although the school has a collective bargaining agreement that allows
for up to one year of unpaid leave for various personal reasons,
including to care for a newborn, the Personnel Director denies the
request. When Eric points out that women have been granted childcare
leave, the Director says, “That’s different. We have to give childcare
leave to women.” He suggests that Eric instead request unpaid emergency
leave, though that is limited to 90 days. This is a violation of Title
VII because the employer is denying male employees a type of leave,
unrelated to pregnancy, that it is granting to female employees.

EXAMPLE 14
EMPLOYER UNLAWFULLY DENIED PART-TIME POSITION
TO MALE WORKER BECAUSE OF SEX

Tyler, a service technician for a communications company, requests
reassignment to a part-time position so that he can help care for his
two-year-old daughter when his wife returns to work. Tyler’s supervisor,
however, rejects the request, saying that the department has only one
open slot for a part-time technician, and he has reserved it in case it
is needed by a female technician. Tyler’s supervisor says that Tyler
can have a part-time position should another one open up. After two
months, no additional slots have opened up, and Tyler files an EEOC
charge alleging sex discrimination. Under the circumstances the
employer has discriminated against Tyler based on sex by denying him a
part-time position.

In addition to sex discrimination, race or national origin
discrimination may be a further employment barrier faced by women of
color who are caregivers. For example, a Latina working mother might be
subjected to discrimination by her supervisor based on his
stereotypical notions about working mothers or pregnant workers, as well
as his hostility toward Latinos generally. Women of color also may be
subjected to intersectional discrimination that is specifically directed
toward women of a particular race or ethnicity, rather than toward all
women, resulting, for example, in less favorable treatment of an African
American working mother than her White counterpart.81

EXAMPLE 15
UNLAWFUL DENIAL OF COMPENSATORY TIME
BASED ON RACE

Margaret, an African American employee in the City’s Parks and
Recreation Department, files an EEOC charge alleging that she was denied
the opportunity to use compensatory time because of her race. She
asked her supervisor, Sarah, for the opportunity to use compensatory
time so she could occasionally be absent during regular work hours to
address personal responsibilities, such as caring for her children when
she does not have a sitter. Sarah rejected the request, explaining that
Margaret’s position has set hours and that any absences must be under
the official leave policy. The investigation reveals that while the
City does not have an official compensatory time policy, several White
employees in Margaret’s position have been allowed to use compensatory
time for childcare purposes. When asked about this discrepancy, Sarah
merely responds that those employees’ situations were “different.” In
addition, the investigation reveals that while White employees have been
allowed to use compensatory time, no African Americans have been
allowed to do so. Under the circumstances, the investigator determines
that Margaret was unlawfully denied the opportunity to use compensatory
time based on her race.

EXAMPLE 16
UNLAWFUL HARASSMENT AND REASSIGNMENT
BASED ON SEX AND NATIONAL ORIGIN

Christina, a Mexican-American, filed an EEOC charge alleging that she
was subjected to discrimination based on national origin and pregnancy.
Christina had worked as a server waiting tables at a large chain
restaurant until she was reassigned to a kitchen position when she was
four months pregnant. One of Christina’s supervisors has regularly made
comments in the workplace about how Mexicans are entering the country
illegally and taking jobs from other people. After Christina becomes
pregnant, he began directing the comments at Christina, telling her that
Mexican families are too large and that it is not fair for Mexicans to
come to the United States and “take over” and use up tax dollars. When
he reassigned Christina, he explained to her that he thought customers’
appetites would be spoiled if they had their food brought to them by
someone who was pregnant. Under these circumstances, the evidence shows
that Christina was subjected to discrimination based on both sex
(pregnancy) and national origin.

In addition to prohibiting discrimination against a qualified worker
because of his or her own disability, the Americans with Disabilities
Act (ADA) prohibits discrimination because of the disability of an
individual with whom the worker has a relationship or association, such
as a child, spouse, or parent.82 Under
this provision, an employer may not treat a worker less favorably based
on stereotypical assumptions about the worker’s ability to perform job
duties satisfactorily while also providing care to a relative or other
individual with a disability. For example, an employer may not refuse
to hire a job applicant whose wife has a disability because the employer
assumes that the applicant would have to use frequent leave and arrive
late due to his responsibility to care for his wife.83 For more information, see EEOC’s Questions and Answers About the Association Provision of the ADA at
http://www.eeoc.gov/facts/association_ada.html.

EXAMPLE 17
UNLAWFUL STEREOTYPING BASED ON ASSOCIATION
WITH AN INDIVIDUAL WITH A DISABILITY

An employer is interviewing applicants for a computer programmer
position. The employer determines that one of the
applicants, Arnold, is the best qualified, but is reluctant to hire him
because he disclosed during the interview that he is a divorced father
and has sole custody of his son, who has a disability. Because the
employer concludes that Arnold’s caregiving responsibilities for a
person with a disability may have a negative effect on his attendance
and work performance, it decides to offer the position to the second
best qualified candidate, Fred, and encourages Arnold to apply for any
future openings if his caregiving responsibilities change. Under the
circumstances, the employer has violated the ADA by refusing to hire
Arnold because of his association with an individual with a disability.

Employers may be liable if workers with caregiving responsibilities
are subjected to offensive comments or other harassment because of race,
sex (including pregnancy), association with an individual with a
disability,84 or another protected characteristic and the conduct is sufficiently severe or pervasive to create a hostile work environment.
85 The same legal standards that apply to
other forms of harassment prohibited by the EEO statutes also apply to
unlawful harassment directed at caregivers or pregnant workers.

Employers should take steps to prevent harassment directed at
caregivers or pregnant workers from occurring in the workplace and to
promptly correct any such conduct that does occur. In turn, employees
who are subjected to such harassment should follow the employer’s
harassment complaint process or otherwise notify the employer about the
conduct, so that the employer can investigate the matter and take
appropriate action. For more information on harassment claims
generally, see EEOC Policy Guidance on Current Issues of Sexual Harassment (Mar. 19, 1990) at http://www.eeoc.gov/policy/docs/currentissues.html, and Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 19, 1999) at
http://www.eeoc.gov/policy/docs/harassment.html.

After Yael, a supervisor at a construction site, returned to work
from maternity leave, she asked her supervisor, Rochelle, for permission
to use her lunch break to breastfeed her child at the child’s day care
center. Rochelle agreed, but added, “Now that you’re a mother, you
won’t have the same dedication to the job. That’s why I never had any
kids! Maybe you should rethink being a supervisor.” She also began
monitoring Yael’s time, tracking when Yael left and returned from her
lunch break and admonishing her if she was late, even only a few
minutes. Other employees who left the site during lunch were not
similarly monitored. Rochelle warned Yael that if she had another
child, she could “kiss her career goodbye,” and that it was impossible
for any woman to be a good mother and a good supervisor at the same
time. Yael is very upset by her supervisor’s conduct and reports it to a
higher-level manager. However, the employer refuses to take any
action, stating that Yael is merely complaining about a “personality
conflict” and that he does not get involved in such personal matters.
After the conduct continues for several more months, Yael files an EEOC
charge alleging that she was subjected to sex-based harassment. Under
the circumstances, the investigator determines that Yael was subjected
to a hostile work environment based on sex and that the employer is
liable.

Ramona, an account representative, had been working at a computer
software company for five years when she became pregnant. Until then,
she had been considered a “top performer,” and had received multiple
promotions and favorable evaluations. During Ramona’s pregnancy, her
supervisor, Henry, frequently made pregnancy-related comments, such as,
“You look like a balloon; why don’t you waddle on over here?” and,
“Pregnant workers hurt the company’s bottom line.” Henry also began
treating Ramona differently from other account representatives by, for
example, asking for advance notification and documentation of medical
appointments – a request that was not made of other employees who took
leave for medical appointments nor of Ramona before her pregnancy.

After Ramona returned from maternity leave, Henry continued to treat
her differently from other account representatives. For example,
shortly after Ramona returned from maternity leave, Henry gave Ramona’s
coworkers an afternoon off so that they could attend a local fair as a
“reward” for having covered Ramona’s workload while she was on leave,
but required Ramona to stay in the office and answer the phones. On
another occasion, Ramona requested a schedule change so that she could
leave earlier to pick up her son from daycare, but Henry denied the
request without explanation, even though other employees’ requests for
schedule changes were granted freely, regardless of the reason for the
request. Henry also continued to make pregnancy-related comments to
Ramona on a regular basis. For example, after Ramona returned from
maternity leave, she and Henry were discussing a coworker’s pregnancy,
and Henry sarcastically commented to Ramona, “I suppose you’ll be
pregnant again soon, and we’ll be picking up the slack for you just like
the last time.”

Ramona complained about Henry’s conduct to the Human Resources
Manager, but he told her he did not want to take sides and that matters
like schedule changes were within managerial discretion. After the
conduct had continued for several months, Ramona filed an EEOC charge
alleging that she had been subjected to a hostile work environment
because of her pregnancy and use of maternity leave. Noting that
Ramona experienced ongoing abusive conduct after she became pregnant,
the investigator determines that Ramona has been subjected to a hostile
work environment based on pregnancy and that the employer is liable.86

EXAMPLE 20
HOSTILE WORK ENVIRONMENT BASED ON ASSOCIATION WITH AN INDIVIDUAL WITH A DISABILITY

Martin, a first-line supervisor in a department store, had an
excellent working relationship with his supervisor, Adam, for many
years. However, shortly after Adam learned that Martin’s wife has a
severe form of multiple sclerosis, his relationship with Martin
deteriorated. Although Martin had always been a good performer, Adam
repeatedly expressed his concern that Martin’s responsibilities caring
for his wife would prevent him from being able to meet the demands of
his job. Adam removed Martin from team projects, stating that Martin’s
coworkers did not think that Martin could be expected to complete his
share of the work “considering all of his wife’s medical problems.”
Adam set unrealistic time frames for projects assigned to Martin and
yelled at him in front of coworkers about the need to meet approaching
deadlines. Adam also began requiring Martin to follow company policies
that other employees were not required to follow, such as requesting
leave at least a week in advance except in the case of an emergency.
Though Martin complained several times to upper management about Adam’s
behavior, the employer did nothing. Martin files an EEOC charge, and
the investigator determines that the employer is liable for harassment
on the basis of Martin’s association with an individual with a
disability.

Employers are prohibited from retaliating against workers for
opposing unlawful discrimination, such as by complaining to their
employers about gender stereotyping of working mothers, or for
participating in the EEOC charge process, such as by filing a charge or
testifying on behalf of another worker who has filed a charge. Because
discrimination against caregivers may violate the EEO statutes,
retaliation against workers who complain about such discrimination also
may violate the EEO statutes.87

The retaliation provisions under the EEO statutes protect
individuals against any form of retaliation that would be reasonably
likely to deter someone from engaging in protected activity.88
Caregivers may be particularly vulnerable to unlawful retaliation
because of the challenges they face in balancing work and family
responsibilities. An action that would be likely to deter a working
mother from filing a future EEOC complaint might be less likely to deter
someone who does not have substantial caregiving responsibilities. As
the Supreme Court noted in a 2006 decision, “A schedule change in an
employee’s work schedule may make little difference to many workers, but
may matter enormously to a young mother with school age children.”89
Thus, the EEO statutes would prohibit such a retaliatory schedule
change or any other act that would be reasonably likely to deter a
working mother or other caregiver from engaging in protected activity.

Footnotes

1 For more information on the FMLA, see Compliance Assistance – Family and Medical Leave Act, http://www.dol.gov/whd/fmla/ (U.S. Department of Labor web page); see also EEOC Fact Sheet, The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 (1995), http://www.eeoc.gov/policy/docs/fmlaada.html (discussing questions that arise under Title VII and the ADA when the FMLA also applies).

While federal law does not prohibit discrimination based on
parental status, some state and local laws do prohibit discrimination
based on parental or similar status. E.g., ALASKA STAT. §
18.80.200 (prohibiting employment discrimination based on “parenthood”);
D.C. Human Rights Act, D.C. CODE § 2-1402.11 (prohibiting employment
discrimination based on “family responsibilities”).

2 In 1970, 43% of women were in the
labor force while 59% of women were in the labor force in 2005. BUREAU
OF LABOR STATISTICS, DEP’T OF LABOR, WOMEN IN THE LABOR FORCE: A
DATABOOK 1 (2006) [hereinafter DATABOOK], http://www.bls.gov/cps/wlf-databook-2006.pdf.

4 DATABOOK, supra note 2, Table 7 (59% of mothers with children under 3 were in the civilian labor force in 2005, compared with 34% in 1975).

5 BUREAU OF LABOR STATISTICS, DEP’T OF LABOR, WORKING IN THE 21ST CENTURY,
http://www.bls.gov/opub/working/home.htm
(combined work hours per week for married couples with children under 18 increased from 55 hours in 1969 to 66 hours in 2000).

6 Testimony of Heather Boushey,
Senior Economist, Center for Economic and Policy Research,
to the EEOC, Apr. 17, 2007, http://www.eeoc.gov/abouteeoc/meetings/4-17-07/boushey.html
(“For many families, having a working wife can make the difference
between being middle class and not. . . . The shift in women’s work
participation is not simply about women wanting to work, but it is also
about their families needing them to work.”).

BUREAU OF LABOR STATISTICS, DEP’T OF LABOR, AMERICAN TIME-USE SURVEY (2006), Table 8, http://www.bls.gov/news.release/pdf/atus.pdf
(in 2005, in households with children under 6, working women spent an
average of 2.17 hours per day providing care for household members
compared with 1.31 hours for working men; in households with children 6
to 17, working women spent an average of .99 hours per day providing
care for household members compared with .50 for working men).

9Id. at 360 (noting that women provide about 70% of unpaid elder care); see also Nevada Dep’t of Human Res. v. Hibbs,
538 U.S. 721, 738 (2003) (noting that working women provide two-thirds
of the nonprofessional care for older, chronically ill, and disabled
individuals); Cathy D. Martin, More Than the Work: Race and Gender Differences in Caregiving Burden, 21 JOURNAL OF FAMILY ISSUES 986, 989-90 (2000) (discussing greater role women play in providing eldercare).

16 For example, by 1900, 26% of
married African American women were wage earners, compared with 3.2% of
their White counterparts. JENNIFER TUCKER & LESLIE R. WOLFE, CTR.
FOR WOMEN POLICY STUDIES, DEFINING WORK AND FAMILY ISSUES: LISTENING TO
THE VOICES OF WOMEN OF COLOR 4 (1994) (citing other sources). More
recently, in 1970, more than 70% of married African American
middle-class women and nearly 45% of married African American
working-class women were in the labor force compared with 48% and 32%,
respectively, of their White counterparts. LONNAE O’NEAL PARKER, I’M
EVERY WOMAN: REMIXED STORIES OF MARRIAGE, MOTHERHOOD AND WORK 29
(2005).

17 DATABOOK, supra note 2,
Table 5 (in 2005, 68% of African American women with children under the
age of 3 were in the workforce compared with 58% of White women, 53% of
Asian American women, and 45% of Hispanic women).

Native American women may have greater childcare responsibilities and
are less likely to be employed than their White or African American
counterparts. Native American women may have special family and
community obligations based on tribal culture and often have more
children than do White or African American women. Job opportunities may
be further limited since Native American women often live in remote
areas where the few available jobs tend to be in traditionally
male-dominated industries. THE NATIVE NORTH AMERICAN ALMANAC 1088 (2d
ed. 2001).

19 U.S. CENSUS BUREAU, GRANDPARENTS LIVING WITH GRANDCHILDREN: 2000, Table 1 (2003),http://www.census.gov/prod/2003pubs/c2kbr-31.pdf
(showing a higher proportion of African American and Native American
grandmothers responsible for raising grandchildren than White, Asian, or
Hispanic grandmothers).

20See NAT’L ASS’N OF STATE
UNITS ON AGING, IN THE MIDDLE: A REPORT
ON MULTICULTURAL BOOMERS COPING WITH FAMILY AND AGING ISSUES (2001), http://www.nasua.org/familycaregiver/rbv1/rbv1b11.pdf
(in survey of Baby Boomers in the “sandwich generation,” one in five
White respondents reported providing eldercare or financial assistance
to their parents, compared with two in five Asian Americans or one in
three Hispanics or African Americans); see also Karen Bullock et al., Employment and Caregiving: Exploration of African American Caregivers, SOCIAL WORK 150 (Apr. 2003) (discussing impact of eldercare responsibilities on employment status of African Americans).

21 Donna St. George, Fathers Are No Longer Glued to Their Recliners,
WASH. POST, Mar. 20, 2007, at A11 (men’s childcare work increased from
2.5 hours to 7 hours per week between 1965 and 2003). The total
workload of married mothers and fathers combining paid work, childcare,
and housework is about equal at 65 hours per week for mothers and 64
hours per week for fathers. Id.; see also SUZANNE BIANCHI ET AL., CHANGING RHYTHMS OF AMERICAN FAMILY LIFE (2006).

22See, e.g., KAREN L.
BREWSTER & BRYAN GIBLIN, EXPLAINING TRENDS IN COUPLES’
USE OF FATHERS AS CHILDCARE PROVIDERS, 1985.2002, at 2.3 (2005), http://www.fsu.edu/~popctr/papers/floridastate/05-151paper.pdf
(percentage of employed married women who relied on their husbands as
the primary childcare provider increased from 16.6% in 1985 to 23.2% in
2002).

25 The median weekly earnings of
full-time wage and salary workers in 2005 were $596 for White women
compared with $499 for African American women and $429 for Hispanic
women. DATABOOK, supra note 2, Table 16. While the weekly
median earnings for Asian American women, $665, exceed the earnings of
White women, id., the earnings of Asian American women vary widely
depending on national origin. See Socioeconomic Statistics and Demographics, Asian Nation, http://www.asian-nation.org/demographics.shtml (discussing the wide disparity in socioeconomic attainment rates among Asian Americans).

27E.g., ONE SICK CHILD AWAY FROM BEING FIRED, supra
note 24, at 23 (discussing case presented to arbitrator where employee
with nine years of service was discharged for absenteeism when she left
work after receiving a phone call that her four-year-old daughter had
fallen and was being taken to the emergency room).

30 GOOD FOR BUSINESS: MAKING FULL USE
OF THE NATION’S HUMAN CAPITAL, Washington, D.C.: U.S. Gov’t Printing
Office, at 3. The Glass Ceiling Commission was established under the
Civil Rights Act of 1991 to complete a study of the barriers to
advancement faced by women and minorities. A copy of the Commission’s
1995 fact-finding report is available at http://digitalcommons.ilr.cornell.edu/key_workplace/116.

31Nevada Dep’t of Human Res. v. Hibbs,
538 U.S. 721, 738 (2003) (holding that the family-leave provision of
the Family and Medical Leave Act is a valid exercise of congressional
power to combat sex discrimination by the states); see also Phillips v. Martin Marietta Corp.,
400 U.S. 542, 545 (1971) (Marshall, J., concurring) (Title VII does not
permit “ancient canards about the proper role of women to be a basis
for discrimination”).

32Hibbs, 538 U.S. at 731 (in
an FMLA claim brought by a male worker who was denied leave to care for
his ailing wife, the Court noted that states’ administration of leave
benefits has fostered the “pervasive sex-role stereotype that caring for
family members is women’s work”).

33See SHELLEY CORRELL &
STEPHEN BENARD, GETTING A JOB: IS THERE A MOTHERHOOD PENALTY? (2005)
(women with children were recommended for hire and promotion at a much
lower rate than women without children).

35 See § II.D, infra (discussing disparate treatment of women of color who are caregivers).

36 This document addresses only
disparate treatment, or intentional discrimination, against caregivers.
It does not address disparate impact discrimination.

37See Thomas v. Eastman Kodak Co.,
183 F.3d 38, 61 (1st Cir. 1999) (“concept of ‘stereotyping’ includes
not only simple beliefs such as ‘women are not aggressive’ but also a
host of more subtle cognitive phenomena which can skew perceptions and
judgments”).

40 For example, results of internal
employee surveys as reported by Eli Lilly revealed that employees with
the most flexibility and control over their hours reported more job
satisfaction, greater sense of control, and less intention to leave than
those on other schedules. CORPORATE VOICES FOR WORKING FAMILIES,
BUSINESS IMPACTS OF FLEXIBILITY: AN
IMPERATIVE FOR EXPANSION (2005) 13, http://www.cvworkingfamilies.org/flex_report/flex_report.shtml.

41 In a 2005 study, almost half of the
employers that offer flexible work schedules or other programs to help
employees balance work and family responsibilities stated that the main
reason they did so was to recruit and retain employees, and one-quarter
said they did so mainly to enhance productivity and commitment.
FAMILIES AND WORK INST., NATIONAL STUDY OF
EMPLOYERS 26 (2005), http://familiesandwork.org/site/research/reports/2005nse.pdf; see also Work Life, Fortune Special Section, http://www.timeinc.net/fortune/services/sections/fortune/corp/2004_09worklife.html
(2004) (noting that “smart companies are retaining talent by offering
employees programs to help them manage their work and personal life
priorities”).

42 For example, based on the
proportion of workers who said they would have left in the absence of
flexible workplace policies, the accounting firm Deloitte and Touche
calculated that it saved $41.5 million in turnover-related costs in 2003
alone. CORPORATE VOICES, supra note 40, at 10.

43 See Back v. Hastings on Hudson Union Free Sch. Dist.,
365 F.3d 107, 121 (2d Cir. 2004) (female school psychologist with a
young child could show that she was denied tenure because of her sex by
relying on evidence of gender-based comments about working mothers and
other evidence of sex stereotyping and was not required to show that
similarly situated male workers were treated more favorably); Plaetzer v. Borton Auto., Inc.,
No. Civ. 02-3089 JRT/JSM, 2004 WL 2066770, at *6 n.3 (D. Minn. Aug. 13,
2004) (evidence of more favorable treatment of working fathers is not
needed to show sex discrimination against working mothers where an
“employer’s objection to an employee’s parental duties is actually a
veiled assertion that mothers, because they are women, are
insufficiently devoted to work, or that work and motherhood are
incompatible”); cf. Lust, 383 F.3d at 583 (reasonable jury
could have concluded that the plaintiff’s supervisor did not recommend
her for a promotion because he assumed that, as a working mother, the
plaintiff would not accept a promotion that would require her to move
because of its disruptive effect on her children). But see Philipsen v. University of Mich. Bd. of Regents,
No. 06-CV-11977-DT, 2007 WL 907822 (E.D. Mich. Mar. 22, 2007) (holding
that a plaintiff cannot establish a prima facie case of sex
discrimination against women with young children in the absence of
comparative evidence that men with young children are treated more
favorably). While the Commission agrees that the plaintiff raised no
inference of sex discrimination, it believes that cases should be
resolved on the totality of the evidence and concurs with Back and Plaetzer
that comments evincing sex-based stereotypical views of women with
children may support an inference of discrimination even absent
comparative evidence about the treatment of men with children.

44E.g., Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 55 (1st Cir. 2000) (comments by decisionmakers reflecting
concern that the plaintiff might not be able to balance work and family
responsibilities after she had a second child could lead a jury to
conclude that the plaintiff was fired because of sex).

45Sigmon v. Parker Chapin Flattau & Klimpl,
901 F. Supp. 667, 678 (S.D.N.Y. 1995) (the plaintiff’s only “deeply
critical” performance evaluation was received shortly after she
announced her pregnancy and therefore could be discounted).

46Phillips v. Martin Marietta Corp.,
400 U.S. 542, 544 (1971) (evidence showed that the employer had a
policy of not hiring women with preschool age children, but did not have
a policy of not hiring men with preschool age children).

47 Sigmon, 901 F. Supp. at
678 (reasonable factfinder could conclude that the decreasing number of
women in the corporate department was caused by sex discrimination where
tension between female associates and the employer regarding the
maternity leave policy contributed to the high separation rate of
pregnant women and mothers).

48 For more information on the kinds of evidence that may be relevant in a disparate treatment case, see EEOC Compliance Manual: Race Discrimination, Volume II, § 15-V, A.2, “Conducting a Thorough Investigation” (2006), http://www.eeoc.gov/policy/docs/race-color.html#VA2.

49Martin Marietta Corp., 400
U.S. at 545 (Title VII prohibits employer from hiring men with preschool
age children while refusing to hire women with preschool age children).
Some courts and commentators have used the term “sex plus” to describe
cases in which the employer discriminates against a subclass of women
or men, i.e., sex plus another characteristic, such as caregiving or
marriage. See, e.g., Philipsen v. University of Mich. Bd. of Regents,
No. 06-CV-11977-DT, 2007 WL 907822, at *4 (E.D. Mich. Mar. 22, 2007)
(“sex plus” discrimination is discrimination based on sex in conjunction
with another characteristic); Gee-Thomas v. Cingular Wireless,
324 F. Supp. 2d 875 (M.D. Tenn. 2004) (“Title VII also prohibits
so-called ‘gender plus’ or ‘sex plus’ discrimination, by which an
employer discriminates, not against the class of men or women as a
whole, but against a subclass of men or women so designated by their sex
plus another characteristic.”); Regina E. Gray, Comment, The Rise and Fall of the “Sex Plus” Discrimination Theory: An Analysis of Fisher
v. Vassar College, 42 How. L. J. 71 (1998). In Back, the Second
Circuit explained that the term “sex plus” is merely a concept used to
illustrate that a Title VII plaintiff can sometimes survive summary
judgment even when not all members of the protected class are subjected
to discrimination. The Commission agrees with the Back court
that, in practice, the term “sex plus” is “often more than a little
muddy” and that the “[t]he relevant issue is not whether a claim is
characterized as ‘sex plus’ or ‘gender plus,’ but rather, whether the
plaintiff provides evidence of purposefully sex-discriminatory acts.”
365 F.3d at 118-19 & n.8.

50 Lust v. Sealy, Inc., 383
F.3d 580, 583 (7th Cir. 2004) (“Realism requires acknowledgment that the
average mother is more sensitive than the average father to the
possibly disruptive effect on children of moving to another city, but
the antidiscrimination laws entitle individuals to be evaluated as
individuals rather than as members of groups having certain average
characteristics.”); see also Manhart v . City of Los Angeles, Dep’t of Water & Power,
435 U.S. 702, 708 (1978) (“[Title VII’s] focus on the individual is
unambiguous. It precludes treatment of individuals as simply
components of a racial, religious, sexual, or national class. . . . Even
a true generalization about the class is an insufficient reason for
disqualifying an individual to whom the generalization does not
apply.”).

51Back, 365 F.3d at 121 (in a
sex discrimination claim under 42 U.S.C. § 1983, the court stated that
“where stereotypes are considered, the notions that mothers are
insufficiently devoted to work, and that work and motherhood are
incompatible, are properly considered to be, themselves, gender-based”).

52 Marion Crain, “Where Have All the Cowboys Gone?” Marriage and Breadwinning in Postindustrial Society,
60 OHIO ST. L.J. 1877, 1893 (1999) (“[T]he cultural assignment to women
of the primary responsibility for nurturing children and making a home
undermines their performance in the market . . . . Women who are not
caregivers may be adversely affected as well, because employers will
assume that their attachment to the waged labor market is secondary.”).

53 Felice N. Schwartz, BREAKING WITH
TRADITION: WOMEN AND WORK, THE NEW FACTS OF LIFE 9-26 (1992) (commenting
that “even today, women sometimes are advised to remove their wedding
rings when they interview for employment, presumably to avoid the
inference that they will have children and not be serious about their
careers”), cited in Williams & Segal, supra note 23, at 97; Edward J. McCaffery, Slouching Towards Equality: Gender Discrimination, Market Efficiency, and Social Change,
103 YALE L.J. 595, 631 n.124 (1993) (stating that “getting married
itself is an act that sends out the wrong signal on this score [of
commitment to the labor market] – that is, it does for women – and thus
the evidence that married women hide their wedding rings prior to job
interviews is not surprising”).

56Back, 365 F.3d at 120
(“it takes no special training to discern stereotyping in the view that a
woman cannot ‘be a good mother’ and have a job that requires long
hours, or in the statement that a mother who received tenure ‘would not
show the same level of commitment [she] had shown because [she] had
little ones at home’”).

58 Employers may think that they are
behaving considerately when they act on stereotypes that they believe
correspond to characteristics that women should have, such as the belief
that working mothers with young children should avoid extensive travel.
See KATHLEEN FUEGEN ET AL., Mothers and Fathers in the Workplace:
How Gender and Parental Status Influence Judgments of Job-Related
Competence, 60 J. SOC. ISSUES 737, 751 (2004); Williams & Segal, supra note 23, at 95.

59Lust, 383 F.3d 580
(upholding jury’s finding that employee was denied promotion based on
sex where supervisor did not consider plaintiff for a promotion that
would have required relocation to Chicago because she had children and
he assumed that she would not want to move, even though she had never
told him that and, in fact, had told him repeatedly that she was
interested in a promotion despite the fact that there was no indication
that a position would be available soon at her own office in Madison).

60Cf. International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls,
499 U.S. 187, 199-200 (1991) (in rejecting employer policy that
excluded fertile women from positions that would expose them to fetal
hazards, the Court stated that the “beneficence of an employer’s purpose
does not undermine the conclusion that an explicit gender-based policy
is sex discrimination”).

61See Lettieri v. Equant Inc.,
478 F.3d 640 (4th Cir. 2007) (evidence was sufficient for finder of
fact to conclude that the plaintiff was denied a promotion because of
discriminatory belief that women with children should not live away from
home during the work week).

62See Thomas v. Eastman Kodak Co.,
183 F.3d 38, 42, 59-61 (1st Cir. 1999) (“concept of ‘stereotyping’
includes not only simple beliefs such as ‘women are not aggressive’ but
also a host of more subtle cognitive phenomena which can skew
perceptions and judgments”).

63See Amy J.C. Cuddy et al., When Professionals Become Mothers, Warmth Doesn’t Cut the Ice,
60 J. SOC. ISSUES 701, 711 (2004) (“Not only are [working mothers]
viewed as less competent and less worthy of training than their
childless female counterparts, they are also viewed as less competent
than they were before they had children. Merely adding a child caused
people to view the woman as lower on traits such as capable and
skillful, and decreased people’s interest in training, hiring, and
promoting her.”).

64 See Back, 365 F.3d at 115 (employer told employee that it was “not possible for [her] to be a good mother and have this job”); Trezza v. Hartford, Inc.,
No. 98 CIV. 2205 (MBM), 1998 WL 912101, at *2 (S.D.N.Y. Dec. 30, 1998)
(employer remarked to employee that, in attempting to balance career and
motherhood, “I don’t see how you can do either job well”); see also
Cecilia L. Ridgeway & Shelley J. Correll, Motherhood as a Status Characteristic,
60 J. SOC. ISSUES 683, 690 (2004) (noting that while mothers are
expected always to be “on call for their children,” a worker is expected
to be “unencumbered by competing demands and be always there for his or
her employer”).

70 Title VII defines the terms
“because of sex” or “on the basis of sex” as including “because of or on
the basis of pregnancy, childbirth, or related medical conditions” and
provides that “women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all employment-related
purposes . . . as other persons not so affected but similar in their
ability or inability to work.” 42 U.S.C. § 2000e(k).

71 Some employers’ improper pregnancy-related “inquiries” have even included pregnancy testing. See, e.g., Justice Department Settles Pregnancy Discrimination Charges Against D.C. Fire Department,
U.S. FED. NEWS, Sept. 8, 2005, 2005 WLNR 14256220 (reporting on
settlement between DOJ and District of Columbia regarding complaint that
employment offers as emergency medical technicians were contingent on
negative pregnancy test result and that technicians who became pregnant
during first year of employment were threatened with termination).

72See EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, Question 2 (2000), http://www.eeoc.gov/policy/docs/guidance-inquiries.html
(“A ‘medical examination’ is a procedure or test that seeks information
about an individual’s physical or mental impairments or health.”)
(emphasis added). For information on the ADA’s specific restrictions on
the use of medical examinations, see 29 C.F.R. §§ 1630.13, .14 &
Appendix to Part 1630.

77 See Williams & Segal, supra note 23, at 101-02 (discussing stereotypes of men who take active role in childcare).

78 For information on
protections under the Family and Medical Leave Act, see Compliance
Assistance – Family and Medical Leave Act, http://www.dol.gov/whd/fmla/.

79 See California Fed. Sav. & Loan Ass’n v. Guerra,
472 U.S. 272, 290 (1987) (upholding state pregnancy disability-leave
statute requiring employers to provide leave for the period of time that
a woman is physically disabled by pregnancy, childbirth, and related
medical conditions).

80 This period includes the postpartum period that a woman remains incapacitated as a result of having given birth. See generally Pat McGovern et al., Postpartum Health of Employed Mothers 5 Weeks After Childbirth, ANNALS OF FAMILY MEDICINE, Mar. 2006, at 159, available athttp://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1467019.

83 Abdel-Khalke v. Ernst & Young,
LLP, No. 97 CIV 4514 JGK, 1999 WL 190790 (S.D.N.Y. Apr. 7, 1999)
(issues of fact regarding whether employer refused to hire applicant
because of concern that she would take time off to care for her child
with a disability).

84 29 U.S.C. § 1630.8 (ADA makes it unlawful for employer to “deny equal jobs or benefits to, or otherwise discriminate against,” a worker based on his or her association with an individual with a disability) (emphasis added).

86 This example is based on Walsh v. National Computer Systems, Inc.,
332 F.3d 1150 (8th Cir. 2003) (upholding jury verdict that the
plaintiff was subjected to a hostile work environment in violation of
Title VII when she was harassed because she had been pregnant, taken
pregnancy-related leave, and might become pregnant again).

87E.g., Gallina v. Mintz, Levin, Cohn, Ferris, Glosky & Popeo, P.C.,
Nos. 03-1883, 03-1947, 2005 WL 240390 (4th Cir. Feb. 2, 2005)
(unpublished) (plaintiff presented sufficient evidence for reasonable
jury to conclude that she was denied a pay raise and terminated for
complaining about harassment and other adverse conduct that began after
the acting manager learned that the plaintiff had a small child).

88See Burlington N. & Santa Fe Ry. Co. v. White,
126 S. Ct. 2405, 2415 (2006) (“plaintiff must show that a reasonable
employee would have found the challenged action materially adverse,
‘which in this context means it well might have “dissuaded a reasonable
worker from making or supporting a charge of discrimination”’”)
(citations omitted).